Arizonans have right to control own publicity, Appeals Court rules

PHOENIX — A company that uses your image to promote its product or service without first getting your approval is breaking the law and can be sued for damages, the Arizona Court of Appeals has ruled.

The judges rejected arguments by the owners of Denim & Diamonds, a Mesa country-and-western-themed nightclub and dance bar that used to have a sister operation of the same name in Tucson.

The clubs’ attorney had argued that nothing in state law creates a right for ordinary Arizonans to control their own publicity, including the more than a dozen actresses, models and social media influencers who sued Denim & Diamonds.

Appellate Judge Peter Swann conceded that a law put on the books in 2007 says only soldiers and their families have a right to sue when someone uses their name, portrait or picture for advertising or soliciting business.

But Swann, writing for the unanimous three-judge panel, said that doesn’t resolve the matter.

“Arizona recognizes the common law right” of controlling one’s own publicity, he wrote. He said the fact that legislators created a statute specifically dealing with soldiers did not dissolve that right for everyone else.

“Simply stated, Arizona always has, and continues to, recognize a personal right of action for violation of the right to publicity as a form of invasion of privacy,” the judge said. Cases spelling that out go back 75 years, he said.

Beyond that, Swann pointed out that the Arizona Constitution, unlike its federal counterpart, has a specific right of privacy.

The plaintiffs in this case are people who normally get paid for the use of their images. But the ruling says there is no reason to believe that the same rights of privacy — and the same rights to sue — do not exist for anyone else who finds his or her image being used without permission for commercial purposes.

According to court records, the women in this case say Bay Entertainment LLC, which owns both establishments, began using what they said were “pirated photos’’ from unrelated photo shoots.

Each photo featured one or more of them in a costume, bikini or dress. Bay Entertainment edited the photos to include slogans or advertising like “St. Patrick’s Day Bash!” or promoting 50-cent drinks during happy hours.

The company convinced Maricopa County Superior Court Judge Lisa Daniels Flores to throw out the case based, at least in part, on the claim that the women had no legal right to sue. The main argument was that lawmakers, in creating a special statute for soldiers to protect their images, intended to deny the same rights to everyone else.

Swann and his colleagues were not buying it.

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“Nothing in (the law on soldiers) indicates the legislature intended to abrogate civilians’ long-held common law right of publicity,’’ he said.

The appellate judges were no more impressed by arguments by Bay Entertainment that any claim of the women is preempted by the federal Copyright Act.

Swann said it would be one thing if the women claimed the company was using anything in the photographs that is protected by copyright. But their claim, he noted, was that Bay Entertainment “misappropriated their brands and likenesses represented in the photographs.”

The new ruling does not resolve the entire case.

Swann said there is a two-part test to determine invasion of privacy.

The first is whether a false light in which a person was placed “would be highly offensive to a reasonable person.” The second part is whether the defendant “acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

In this case, the judge said, Bay Entertainment posted more than 250 photos of the women on its social media pages.

“In doing so, it created an implication that (the women) support, endorse, were paid by, or were in some other way associated with Denim & Diamonds,” Swann wrote. “Bay Entertainment does not dispute that its postings gave rise to this implication, nor that it is false.”

But he said it is up to a jury to determine if this implication is highly offensive to a reasonable person.

The company said all the images implied that the women approve of dancing with cowboys, for instance.

“Yet no reasonable person would find that implication to be so highly offensive as to be tortuous,” the company argued.